California TOD Deed vs. Living Trust: Which Fits Your Home?

Quick answer: is a TOD deed or a living trust better for a California home?

It depends on your goals, but they do different jobs. A revocable transfer on death deed (Probate Code §5600 and following) names who receives your share of a home when you die. If the deed was validly signed, witnessed, notarized, and recorded, it may help that property avoid probate. It does nothing while you are alive, and it covers only the property it describes.

A properly funded revocable living trust can hold your home and other assets, lets a successor trustee manage them if you become incapacitated, and can include detailed instructions for beneficiaries. A funded trust may help avoid probate for the assets titled in it. Many families find a trust is the more complete tool; some simple situations may suit a TOD deed. Ask counsel which fits.

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How does a California revocable TOD deed work?

A revocable TOD deed is a recorded deed that takes effect only at your death. While you are alive, you keep full ownership, and you can revoke it. The transferor does not need to deliver the deed to the beneficiary, and the beneficiary does not need to accept it during the transferor's life (§5626).

At death, under §5652, the deed transfers all of the transferor's interest in the property:

• To the named beneficiary, subject to the beneficiary's right to disclaim.
• Only if the beneficiary survives the transferor. Otherwise that beneficiary's interest lapses.
• If there is more than one beneficiary, they take as tenants in common in equal shares, and a lapsed share passes to the others in equal shares.
• Subject to liens, mortgages, easements, leases, and other limitations of record.
• Without any warranty of title.

The statutory form also notes that a TOD deed transfers only your ownership share. A co-owner who wants to name a beneficiary must sign and record a separate deed.

What signing, witness, and recording rules did SB 315 add?

SB 315 (Stats. 2021, ch. 215) recast the TOD deed law, effective January 1, 2022. Key requirements now include:

• Signature and date by the transferor (§5624).
• Two witnesses who were present at the same time and witnessed either the signing or the transferor's acknowledgment of signing (§5624). The statutory form in §5642 repeats this and notes the witnesses' signatures do not need to be notarized.
• Notarization of the transferor's signature (§5624).
• Recording in the county where the property is located on or before 60 days after the date it was notarized. If not, the deed is not effective (§5626).

The statutory form also cautions against using a beneficiary as a witness, because it "can cause serious legal problems, including the possible invalidation of the deed." A deed that misses any requirement may fail, which is one reason to get advice rather than filling out a form alone.

What must a TOD beneficiary do after death?

The "common questions" section of the §5642 statutory form says the beneficiary must:

1. Record evidence of the transferor's death (Prob. Code §210).
2. File a change in ownership notice (Rev. & Tax. Code §480).
3. Give notice to the transferor's heirs, including a copy of the deed and the death certificate (Prob. Code §5681).
4. Record an affidavit affirming that notice was sent (Prob. Code §5682(c)).
5. If the transferor received Medi-Cal benefits, notify DHCS of the death and provide a death certificate (Prob. Code §215).

The form itself notes that determining who is an "heir" can be complicated. That is real work for a grieving family, even when no probate case is needed.

What does a TOD deed not do?

A TOD deed is a narrow tool. It generally does not:

• Help with incapacity. It has no effect until death. If you cannot manage your affairs, it gives no one authority over the home.
• Cover other assets. Bank and brokerage accounts, vehicles, and other property need their own arrangements.
• Provide flexible backup beneficiaries. If a beneficiary dies first, that share lapses under §5652 rather than passing to that person's children.
• Manage property for minors or vulnerable beneficiaries. It transfers title outright.
• Prevent co-owner disputes. Multiple beneficiaries become co-owners as tenants in common, which can lead to disagreements about selling, renting, or living in the home.
• Last indefinitely as law. The TOD deed statute is scheduled for repeal on January 1, 2032. Deeds executed before then remain valid, and the transferor can still revoke by recording a revocation (§5600(c)).

Medi-Cal estate recovery: DHCS states it will not recover the value of a deceased member's property that transfers by trust, survivorship, or transfer on death. The beneficiary still has a duty to notify DHCS if the transferor received Medi-Cal (§215). See our guide to Medi-Cal estate recovery.

When does a funded living trust fit better?

Think of a living trust as a safe. Signing the trust builds the safe. Funding puts your valuables inside: the home (usually by deed to the trustee), accounts, and other assets. An unfunded trust is an empty safe.

A funded revocable living trust may fit better when you want:

• Incapacity planning, with a successor trustee who can manage trust assets if you cannot.
• One plan for many assets, not just the house.
• Backup beneficiaries and instructions, such as holding a share for grandchildren if a child dies first.
• Management for minors or beneficiaries who need help.
• Instructions about the home, such as whether it should be sold or kept.

A funded trust may help avoid probate for assets titled in it. See how to fund a living trust and our trust funding service.

Can you use a TOD deed and a living trust together?

Yes. California law allows a trust to be named as a TOD deed beneficiary (Probate Code §5608). Some people name their living trust as the TOD beneficiary, and others use a TOD deed for one property while a trust holds everything else. Combining tools can create conflicts if the documents point in different directions. Coordinate any TOD deed with your will, trust, and beneficiary designations, and ask counsel before mixing them. See also living trust vs. will.

How can CBM help?

CBM Estate & Trust Law helps California families compare options and implement the plan they choose, including living trusts and trust funding. Carmen B. Marquez has practiced estate planning since 2001, and the firm was founded in 2012. Carmen speaks Spanish. Learn more on our estate planning page. CBM does not offer probate services.

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Frequently asked questions

Is a TOD deed cheaper than a living trust?

A TOD deed is usually a simpler document, so upfront cost is often lower. It also does much less: no incapacity planning, no coverage for other assets, and limited backup options. Compare what each tool does, not just the price.

Can I revoke a TOD deed?

Yes. A TOD deed is revocable during your life. The statutory revocation form must be signed, notarized, and recorded on or before 60 days after notarization to be effective. Ask counsel before revoking.

Does a TOD deed avoid Medi-Cal estate recovery?

DHCS says it will not recover property that transfers by transfer on death, survivorship, or trust. Rules can change, and the beneficiary must notify DHCS if the transferor received Medi-Cal. Review your situation with counsel.

What if my TOD beneficiary dies before me?

Under Probate Code §5652, that beneficiary's interest lapses. If there are other beneficiaries, the lapsed share passes to them in equal shares. If there are none, the home may need to pass another way, which could include probate.

Does a TOD deed trigger Prop 19 reassessment?

A transfer at death can be a change in ownership for property tax purposes, and Proposition 19 changed the parent-child exclusion rules. Whether reassessment applies depends on the facts. Ask counsel and your county assessor.

What happens to TOD deeds after 2032?

The statute is set to be repealed January 1, 2032, unless extended. Deeds executed before that date remain valid, and you can still revoke one by recording a revocation (§5600(c)).

Which should I use for my home?

Book a free 60-minute consultation with CBM to talk through your home, family, and goals. /contact · (805) 915-4793 · Trusts@cbm.estate

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What sources does this guide rely on?

• California Probate Code §5600 et seq. (Revocable Transfer on Death Deed, Part 4).
• Probate Code §5624 (execution requirements).
• Probate Code §5626 (60-day recording).
• Probate Code §5642 (statutory form and common questions).
• Probate Code §5652 (effect at death).
• SB 315 (2021-2022), Stats. 2021, ch. 215.
• DHCS, Estate Recovery Program.

How do I book a free 60-minute consultation?

Free 60-minute consultation
/contact · (805) 915-4793 · Trusts@cbm.estate

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Attorney advertising. This guide is general educational information about California law as of the date above. It is not legal advice, does not create an attorney-client relationship, and may not reflect later changes in statutes, forms, or agency guidance. Results depend on your facts; no outcome is guaranteed. CBM Estate & Trust Law (Carmen B. Marquez, P.C.) practices in California only.